UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KIRK MILLER,
Defendant-Appellant.

No. 00-4730

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-00-7)
Submitted: April 13, 2001
Decided: May 3, 2001
Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL
Matthew Patrick Geary, HAIRFIELD & MORTON, P.L.C., Richmond, Virginia, for Appellant. Helen F. Fahey, United States Attorney, Brian R. Hood, Assistant United States Attorney, Richmond,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

UNITED STATES v. MILLER

OPINION
PER CURIAM:
Kirk Miller appeals his jury conviction and 108-month sentence for
sexual abuse. Miller challenges the district courts refusal to give
three requested jury instructions and his sentence enhancement for
obstruction of justice. We review a district courts denial of requested
jury instructions for abuse of discretion. United States v. Stotts, 113
F.3d 493, 496 (4th Cir. 1997). We review the district courts application of the sentencing guidelines for clear error. United States v. Cutler, 36 F.3d 406, 407 (4th Cir. 1994). Finding neither error nor abuse
of discretion, we affirm.
Miller admitting having sexual intercourse with Wanda Booker on
the Fort Lee army base. The contested issue involved whether
Booker, due to her level of intoxication, had the capacity to consent
to the sexual act. Both Miller and Booker attended a Christmas party
hosted by a mutual friend. The two engaged in a drinking game, and
Booker became intoxicated. Miller drove Booker home in Bookers
car. Booker had no recollection of the drive home and recalled only
alighting from her car, entering the house, and turning on a hallway
light. She next awoke in the drivers seat of her car, which was in a
ditch. She was wrapped in a comforter, naked except for a brassiere.
Bookers blood alcohol concentration as measured by a Breathalyzer
test was 0.17.
As Bookers level of intoxication subsided, she noticed increasing
pain in her anus. A forensic sexual assault exam revealed nine recent
external lacerations of her anus and one internal laceration of her rectum. The examining medical professionals opined that the damage
was the result of blunt force trauma, not consensual sexual interaction. In addition, the examining physician testified Booker demonstrated the most severe case of rectal tearing he had observed in his
twenty years of performing sexual assault examinations.
At trial, Miller requested jury instructions on consent, physical
helplessness, and physical resistance. Because Miller agreed to the
use of the term "physically incapable" rather than "physically helpless," we review this aspect of his challenge on appeal for plain error.

UNITED STATES v. MILLER

See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725,
732-33 (1993); United States v. Hastings, 134 F.3d 235, 239 (4th Cir.
1998). We have reviewed Millers claims and the courts instructions
and find the district court neither abused its discretion nor plainly
erred.
Millers sentence was enhanced for obstruction of justice because
Miller provided a false social security number, offered a name which
is a common alias, and claimed to be unable to provide law enforcement officials with basic information about his family. We find the
district courts application of the guidelines was not clear error. We
therefore affirm the judgment of conviction and sentence of the district court. See United States v. Miller, No. CR-00-7 (E.D. Va. Oct.
10, 2000). We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED